MAX & YOU PTY LTD (ABN 78 142 852 579)
The following definitions apply to these terms and conditions of supply and the Personal Guarantee and Indemnity:
Company means Max & You Pty Ltd or its authorized agents.
Customer means any person or entity that has entered into a contract or agreement with the Company for the Company to provide its services.
Intellectual Property means any subject matter, whether tangible or intangible, that attracts, or is susceptible to protection by Intellectual Property Rights.
Intellectual Property Rights means all copyright and analogous rights (including moral rights under the Copyright Act 1968 (Cth)), all rights in relation to inventions (including patent rights), registered and unregistered trademarks (including service marks), registered designs, confidential information (including trade secrets), know-how, circuit layouts and all other rights throughout the world resulting from intellectual activity in the industrial, scientific or artistic fields. These rights include:
a. all rights in all applications to register these rights;
b. all renewals and extensions of these rights; and
c. all adaptations and improvements.
Letter of Engagement means any letter provided by the Company to a Customer outlining the work to be done by the Company and the price to be paid by the Customer to the Company.
Our Background IP means any Intellectual Property of the Company (or licensed to the Company) which we make available, contribute, bring to or use in connection with our engagement.
Parties means the Company and the person or entity that has agreed to the Letter of Engagement provided by the Company.
Price means the amount of money that the Customer agrees to pay the Company as specified or calculated in accordance with the Letter of Engagement.
Service means the works done by the Company for the Customer in accordance with the Letter of Engagement.
Project IP means all Intellectual Property (present or future) to the extent that it incorporates content of the Company and which is created, discovered or coming into existence asresult of, for the purpose of, or in connection with the performance of the Letter of Engagement (including all Intellectual Property developed by the Company in performing this).
1. SUPPLY OF SERVICES: The Company shall use its reasonable endeavors to provide the Services to the Customer in consideration for the payment of the Price in accordance with the Letter of Engagement.
2. PRICING: The price for the Services supplied by the Company is as specified in the Letter of Engagement or as notified from time to time in writing to the client by the Company. Unless otherwise agreed in writing, any deposit shall be non-refundable.
3. PAYMENT: The Customer must pay the Company the Price in accordance with the terms of the Letter of Engagement or as notified from time to time in writing to the client by the Company. If the Letter of Engagement does not specify payment terms then payment is to be made within 7 days of the date of invoice. Time shall be of the essence in respect of the client’s obligation to make payment in accordance with the Letter of Engagement.
4. INTEREST: Interest will accrue in respect of any money payable to the Company at a rate of four per cent higher than the rate fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) (as amended from time to time), calculated on a daily outstanding basis.
5. DELIVERY: Delivery of the Service by the Company is dependant on the information and materials provided by the client and the Company shall not be held liable for any inability to meet the desired outcomes of the client caused by the information and materials provided or not provided by the Customer.
6.1 TITLE: The Company grants a non-exclusive, royalty-free, revocable and non-transferable licence to use all Intellectual Property Rights (including future copyright) in all Project IP upon the creation of that Project IP or, to the extent that any Intellectual Property Rights are not created at the time of the creation of the Project IP, upon the later creation of the Intellectual Property Rights in that Project IP. This licence is not granted until the Company is paid in full in accordance with the Letter of Engagement.
6.2 All Intellectual Property Rights in Our Background IP and in Project IP remain vested in the Company.
6.3 The Customer grants to the Company an exclusive royalty-free, irrevocable, non-transferable licence to use any intellectual property created as a result of fulfilling the obligations created by the Letter of Engagement.
6.4 The Customer warrants that it has copyright in all images and material supplied to the Company.
6.5 You warrant to us that no work or orders requested by you will infringe any other person or entity’s intellectual property rights. You agree to indemnify us without limitation against all actions, proceedings, claims, costs, demands, expenses, charges or penalties made against us or our agents as a result of work carried out at your request in accordance with the designs and specifications furnished by you and which involve infringement of any intellectual property rights at all, including without limitation, infringement of any registered design, patent, trade mark or copyright.
6.6 Copyright in all material created by the Company, including any compilation, remains the property of the Company. The accuracy of the content of the material created by the Company is the responsibility of the Customer.
7. CLAIMS: Claims for the incorrect provision of Services by the Company must be made to the Company in writing within 7 days of the completion of Services as specified in the Letter of Engagement. If this is not done, the Customer shall be conclusively deemed to have accepted the Services supplied in full and final satisfaction of the Letter of Engagement for the supply of Services.
8.1 LIABILITY: This clause and clause 9 below are subject to provisions of legislation such as the Competition and Consumer Act 2010 (C’th) to the extent that these provisions cannot be excluded. The Company does not warrant the Services as fit for any purpose or of acceptable quality other than for the exact purpose for which the Services were specifically designed. The Company offers no warranties but if warranties are intended to be offered then they will be contained within the Letter of Engagement. The Company shall not be responsible for any claims for any damage, loss or expense resulting from the use of Services provided where:
8.2 the Services are used abnormally;
8.3 the Services were not used according to the written instructions or directions that either came with Services or were given verbally by the Company to the Customer;
8.4 the product or services provided or to be provided have subsequently been altered or tampered with interfered with or affected by the Customer or third parties;
8.5 the Services have been used in non-compliance with or in breach of the law or any statutory rules or any other regulations;
8.6 Service is used by a third party who did not purchase Service from the Company;
8.7 the quality of the Services becomes unacceptable due to factors outside of the control of the Company; or
8.8 the Customer fails to take reasonable steps to avoid the quality becoming unacceptable.
8.9 In no event will the Company’s liability exceed $500.00.
9. FORCE MAJEURE: The Company shall have no liability in respect of failure to deliver or perform, or delay in delivering or performing, any obligations due to any cause outside its reasonable control. If the product requires an authorisation or a permit for its use from any authority then it is solely the customer’s obligation to enquire as to the need for and to obtain the permit or authority prior to the use of the goods or services. The Letter of Engagement shall be voidable at the election of the Company if delivery is prevented by fire, flood, drought, frost, strike, interrupted internet service, interruptions caused by computer viruses or computer hacking or other causes beyond the reasonable control of the Company.
10.1 EFFECT OF BREACH OF CONTRACT: If the Customer refuses or fails to take delivery of Services or to make full payment of all monies owing to the Company then the Company may at its absolute discretion (without prejudice to any other rights at law or in equity):
10.2 treat the Letter of Engagement as repudiated by the Customer. In that case the contract formed by the signing of the Letter of Engagement shall be terminated and all of the Customer’s rights under the Letter of Engagement shall be extinguished and any cash deposit paid to the Company shall be retained by the Company as a genuine pre-estimation of the loss of the Company; or
10.3 notwithstanding that property in the Service has not passed to the Customer, sue for and recover the total gross price payable for the Service (less any cash deposit already paid) together with any loss of profits and all expenses and costs incurred as a consequence of the Customer’s refusal or failure to comply with the order or the Letter of Engagement, and retain the property in and possession of products until such time as all monies payable by the Customer have been recovered by the Company.
11. RELEVANT LAW: These terms and conditions are subject to the laws of the State of Victoria and to the exclusive jurisdiction of the Courts of that State.
12. JURISDICTION: Notwithstanding the Customer’s location or provisions of any Court Rules, the parties acknowledge and agree that the appropriate place of trial for any action commenced by either party is Ringwood if the trial is to be heard in the Magistrates Court or Melbourne if the trial is to be held in the County or Supreme Court.
13. CONSUMER GUARANTEES CANNOT BE EXCLUDED Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. A consumer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. A consumer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
14.1 GENERAL: Nothing in the Letter of Engagement constitutes a joint venture, agency, partnership or other fiduciary relationship between the Company and the Customer.
14.2 At all times when performing its obligations under the Letter of Engagement, the Company is an independent entity and not an employee or agent of the Customer.
14.3 The Letter of Engagement and these terms and conditions for the provision of Services by the Company to the Customer may only be amended, or its provisions waived, in writing by the Parties.
14.4 The Letter of Engagement and these terms and conditions shall bind and inure for the benefit of the Parties and their successors and permitted assigns and transferees.
14.5 The Customer acknowledges that it has had the opportunity to provide its desired outcomes and it acknowledges and agrees that the Company will do its best to achieve these outcomes but that they are in no way guaranteed.